"All our work, our whole life is a matter of semantics, because words are the tools with which we work, the material out of which laws are made." — Felix Frankfurter

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Proposed Changes to SCOTX Jurisdiction

A bill (HB 1761) has been proposed in the Texas Legislature to change the Texas Supreme Court’s appellate jurisdiction. Below is my explanation (and first impression) of what the bill would do.

First, the bill would eliminate the Court’s explicit “conflicts jurisdiction.” Currently the jurisdictional statute explicitly gives SCOTX jurisdiction over (1) cases where the COA justices disagree on a legal question, e.g., where there is a dissenting opinion, or (2) cases where multiple COAs disagree on a legal question, i.e., where there is the equivalent of what we call a “circuit split” in the federal courts. The bill would eliminate these and other explicit grounds for jurisdiction—including explicit jurisdiction in cases involving the construction or validity of a statute, cases involving state revenue, and cases where the railroad commission is a party (see §22.001(a)(1)-(6)). Instead of listing these explicit grounds for jurisdiction, the new statute would simply grant SCOTX jurisdiction over any case that presents “a question of law that is important to the jurisprudence of the state.”

It seems obvious that this would still give SCOTX jurisdiction to review any of the cases that it currently has jurisdiction to review. So, at first blush, this change seems more cosmetic than substantive. But it’s also possible that, with this change, the Court might feel less pressure to grant review in cases that involve conflicting opinions (and even conflicting decisions), if the Court can construe the conflict as unimportant. So it’s possible this change could lead to a reduction in the number of cases the Court reviews.

Second, the bill would eliminate (1) the application for a writ of error and (2) the certified question from a COA as mechanisms for bringing a case to SCOTX (see §§22.001(b), 22.007). But the bill replaces the application for a writ of error with a regular petition for review.

And finally, the bill would eliminate the COA’s final jurisdiction in certain cases. Currently, a petition for review to SCOTX is not allowed in certain cases where the COA’s judgment is final—e.g., in cases where a temporary injunction has been granted or refused, or in an interlocutory appeal from an order appointing a receiver or trustee (see § 22.225(b)-(e)). The proposed statute would repeal § 22.225(b)-(e), making the COA’s judgment no longer “conclusive on the law” in any civil case—so that SCOTX review would always be available.

This is ostensibly the biggest change proposed in the bill. However, though it would most likely lead to an increase in the number of petitions filed, I’m not sure it would lead to an increase in the number of cases reviewed—since SCOTX’s review would remain discretionary.

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Jason Steed is an appellate attorney who handles both civil and criminal appeals. He's represented clients in both state and federal appellate courts across the country. For more, see the "About" page.

This blog reflects Jason's personal views and opinions and not those of his firm or its clients. The content on this blog is available for informational purposes only and is not legal advice. The transmission of information on this blog, or communications with Jason via the blog, do not establish or constitute an attorney-client relationship.